Code of Civil Procedure, 1908 - Order 16 Rule 7A - Summons given to party for service - Court cannot compel a party against his will to obtain summons and to serve the parties/witnesses or his agent on the witnesses.

2. The instant petition is
against the order dated 09.03.2018, wherein the right to lead evidence that of
the plaintiff was closed. Ground for closure of the evidence was that the plaintiff
has refused to summon the witnesses by Dasti summons, as such it was held that
the plaintiff appears to be reluctant and not interested in prosecuting his
case and closure of evidence was ordered.

3. Learned counsel for the
petitioner submits that the order like nature cannot be sustained and the
plaintiff cannot be compelled to take Dasti summons for the witness. He further
submits that the ordinary payment of process to the witnesses were made and the
summons report also shows that they were not served and lastly the summons
report was awaited. It is stated, as the summons report was awaited, the Court
compelled the plaintiff to get the witnesses served through the Dasti summons,
having shown the inability to avail Dasti summons, as punishment thereof, the
right to lead evidence was closed, which cannot be done.

4. Perused the order of the
Court below, which records that the plaintiff was present he was examined and
cross-examined, thereafter was discharged. The court
recorded that other witnesses who were summoned namely Munir Khan and Ameen
Meman, though the summons were issued but the service report was still awaited.
The order-sheet reflects since the other witnesses were not present, as such it
appears that the application under Order 17 Rule 1 CPC was moved for
adjournment. The Court further recorded that the evidence of the plaintiff was
initially fixed on 27.06.2016 and on 09.11.2016 the plaintiff's advocate was
directed to secure the presence of the witness through summons and the plaintiff
has paid four times the process fee to secure the witness and the summons
report is still awaited. Order
further purports that thereafter under the situation, the Court directed the
plaintiff to obtain the Dasti summons to get the witnesses served, but having
said so, the plaintiff showed his inability to serve the witness through the
summons.

5. Order 16 Rule 7 A CPC governs
the situation like nature, which reads as under:-

“7A. Summons given to party for service.- (1) The court may, on the application of any party for the issue of a
summons for the attendance of any person, permit such party to effect service
of such summons on such person and shall, in such a case, deliver the summons
to such party for service.

(2) The
service of such summons shall be effected by or on behalf of such party by
delivering or tendering to the witness personally a copy thereof signed by the
Judge or such officer of the court as he may appoint in this behalf and sealed
with the seal of the court.

(3) The
provisions of Rules 16 and 18 of Order V shall apply to a summons personally
served under this rule as if the person effecting service were a serving
officer.

(4) If such
summons, when tendered, is refused or if the person served refuses to sign an
acknowledgment of service or for any reason such summons cannot be served
personally, the court shall on the application of the party, re-issue such
summons to be served by the court in the same manner as a summons to a
defendant.

(5) Where a
summons is served by a party under this rule, the party shall not be required
to pay the fees otherwise chargeable for the service of summons.”

6. In this
case, as appears from the order-sheet that on earlier occasion the Court
permitted the witnesses to be summoned through the intervention of the Court by
payment of process. Reading of Order 7A CPC as a whole would show that to serve
a witness through the summons by way of Dasti i.e. by tendering the witness
personally a copy thereof can be made on the application of the party and he cannot
be compelled to do so. Meaning thereby, the Court cannot compel a party against
his will to obtain summons and to serve the parties/witnesses or his agent on
the witnesses. The scheme of legislature therefore is that when a party to a
suit applies to Court to summon his witnesses by Dasti summon, the Court has to
respond to such cause.

7. The aforesaid preposition has
been lamented by the Punjab & Haryana High Court in Balwant Singh Bhagwan Singh and
another Vs. Firm Raj Singh Baldev Kishen {AIR 1969 PUNJAB AND HARYANA 197} wherein in para 10 it is held thus:-

“10. I have no
quarrel with the principle enunciated by Dixit J. in roshan Singh's case AIR
1953 Madh Bha 48. I have already observed above that the court cannot compel a
party against his will, to obtain summonses and to serve them either himself or
through his agent on the witnesses. But where the summonses to the witnesses cannot
be issued owing to the default of the party concerned, such as non-deposit of
process-fee or belated deposited of process-fee so that there is not sufficient
time for the issue and service of the summonses on the witnesses, he
disentitles himself to the assistance from Court . The Court may either refuse to
grant adjournment or permit him at his own request to obtain summonses for
service on the witnesses himself or through his agent . But even in such a case
the Dasti process is to be issued only at the request of the party and not
otherwise.”

8. The case in hand would show that summons though was issued to
the witnesses it remained unserved, therefore, since because of the fact that
the plaintiff or a litigant refuses to obey the command of the Court to obtain
the summons to serve through Dasti, he cannot be punished, if the same is refused.
If it was the case even after service of summons, the witnesses have not turned
up, the Court could have procured their attendance to adduce evidence by
coercive method.

9. Further in the case of Roshan Singh Vs. Chiranjilal {AIR 1953
M.B. 48} the Court has held that there
is no provision in the C.P. Code casting an obligation on the parties to
accompany the process-server for having the summons served on their witnesses.
It is the duty of the process-server to serve the summons and if he fails to do
so, parties cannot be punished for his negligence by closure of the right and
the court should not normally shut the right and close the evidence of parties,
unless the act of parties is negligent and are serious in nature, which shows
laches on their part.

10. In the instant case, the
facts would suggest that despite payment of process, the witnesses did not turn
up and even the summons report was awaited. In the result, having refused to
accept to serve the witnesses by Dasti summons, the closure of the evidence of
the plaintiff cannot be ordered as a punishment by drawing an inference. The
insertion of word in Order 16 Rule 7-A CPC by the legislature “the Court may on
application of party” make a departure from compelling a party to obtain Dasti
Summon. Accordingly,
the order dated 09.03.2018 is set aside. On payment of process by the
plaintiff, the summons be served to the witnesses to procure their attendance
before the Court by the learned court below. Despite the service of summons,
the witness do not appear, the Court shall be at liberty to procure their
attendance by coercive method.